Understanding non-party subpoenas in Massachusetts Probate and Family court

There are 3 different types of subpoenas.

Testimonial subpoena

This tells a non-party witness that they have to testify at a specific time and place during a hearing or trial.

Deposition subpoena

This tells a non-party witness that they have to go to a deposition. This is like an interview under oath. It might also ask for documents or information related to the case. This could include electronically stored information, like texts or emails.

Document-only subpoena

This tells a non-party witness that they have to send documents. They don’t need to go to a deposition or court. You also use a document-only subpoena when you want to get records from a business or agency.

Note

It is a good idea to talk to a witness before you send them a subpoena. Tell them the questions you plan to ask them at the hearing or deposition. It is also a good way to make sure they have the documents you need. If you talk to them before, you know if their answers or documents will help your case or not. Make sure the testimony or documents help your case before you subpoena anyone.
 

You can write or type your subpoena.

Make copies of the subpoena before you send it. You need to send a copy of the subpoena to every party in the case, including the opposing party. Keep a copy for yourself.

Testimonial or deposition subpoena

When you write a testimonial or deposition subpoena, you need to include these things:

• The name of the person you need to come to court (the person being subpoenaed).
• The address where a sheriff or deputy constable can find and serve them with the subpoena.
• The name and address of the court.
• The date and time of the hearing or deposition.
• The title of the action and the docket number of your case.
• If you want the witness to bring documents:
  • list the documents in your subpoena. Be as specific as you can.
• A Return of Service: The person serving the subpoena has to fill this out.

Important


Your subpoena needs to be signed by the court clerk, a notary public, or a justice of peace who has reviewed your subpoena and who has the authority to sign it so that it’s valid. You can do this right at the bottom of the subpoena itself.

Document-only subpoena

When you write a subpoena for documents only, you need to include these things:

• The name of the person you need to get the documents from.
• The address where a sheriff or deputy constable can find and serve them with the subpoena. 
• The name and address of the court.
• The deadline for delivering the documents.
• The title of the action and the docket number of your case.
• The specific documents you need them to send you. 
• If they are a business, organization, or agency, it is a good idea to include a blank “Affidavit by keeper of records” for them to fill out. This will make it easier to use the documents in court. If the business, organization, or agency is outside of Massachusetts, this affidavit will need to be certified.
• A Return of Service: The person serving the subpoena has to fill this out.
• The address where the documents should be sent, or whether they should email them to you.

Important


Your subpoena needs to be signed by the court clerk, a notary public, or a justice of peace who has reviewed your subpoena and who has the authority to sign it so that it’s valid. You can do this right at the bottom of the subpoena itself.

Examples of subpoenas

• Sample Blank Subpoena to Testify and Bring Written Evidence to Court - blank, fillable PDF
• Example - Subpoena for a Friend or Family Member Testify and Bring Written Evidence to Court
• Example - Subpoena for a DCF Caseworker to Testify and Bring Their Appointment Book to Court

Some examples of documents or records you can subpoena to use as evidence in your case:

• Business records, like cell phone statements, bank statements, payroll records.
• Medical records, like medical provider notes, list of medications, admission or discharge forms.
• Agency records, like reports from the Department of Children and Families (DCF), Registry of Motor Vehicles, Department of Unemployment Assistance.
• School records, like: report cards, transcripts, attendance logs.
• Social media, cell phone records, and emails.

You need to let the person you want to testify or give documents know about the court case. This is called “serving” the subpoena.

A person who has nothing to do with your case needs to serve a subpoena. They can be: 

• deputy sheriff
• a constable or
• a friend. They must be:
  • over 18 years old, and
  • not a witness for your case, and
  • not related to the person you are serving.

It is best to use a deputy sheriff or constable to be sure the subpoena is served right. It usually costs about about $45 to $65. If you can’t afford the fee, you can file an affidavit of indigency and ask the court to pay these fees.

The person serving the subpoena can deliver it in 1 of 3 ways:

• Delivering a copy of the subpoena in person.
• Showing it and reading it to the person the subpoena is for.
• Leaving a copy of the subpoena at the person’s address.

If you want someone to come to testify at court or a deposition, you also need to include these things with the subpoena:

• A $6.00 witness fee (for 1 day).
• Travel expenses, based on mileage. 
  • You pay $0.10 a mile, for the round trip distance between the witness' home and the court.
  • If the witness works in the city or town where the court is, then the $0.10 a mile is the round trip distance is from the witness’ work and the court.
  • The court rules about subpoenas say that a person who lives or works in Massachusetts doesn't have to travel more than 50 airline miles to attend a deposition or court hearing.
  • The court doesn’t specify how the money needs to be paid. You can pay the witness these costs with cash, a check, or other form of payment.

There are no rules about how much advance notice you need to give the non-party witness if you just want them to testify at a deposition or in court. But you should give them enough time to get there.

If you are also asking for documents, you need to give the non-party witness at least 30 days.

There are no rules about how fast a non-party witness has to respond to a subpoena asking for documents. Generally, 30 days is a reasonable period.
 

Yes. The person can file a motion asking to not obey the subpoena if your subpoena is “unreasonable or oppressive.”

They can also file a motion asking the court to order you to pay for their cost of producing the documents.

But they can’t just ignore a subpoena that has been served on them.

If the person you subpoena does not show up for the hearing and did not file a motion to cancel or modify (change) the subpoena, the judge can give the person an order to respond to the subpoena and appear in court.

Before the judge makes that order, they may ask for proof that the subpoena was served properly. The proof is the Return of Service in the subpoena.

The judge may hold the person in “contempt of court.” Then they can be forced to come to court or go to jail for not showing up in court.

Finally, there are some ways you can force a non-responsive witness to respond to your subpoena, or to appear at a scheduled deposition. For example, if the witness doesn’t send documents after getting a subpoena from you asking for them, you could file a motion to “compel” those documents. This means they are ordered to send them. 

Learn more: 

• Probate and Family Court website
• Sample motion

Subpoena the person who is in charge of the records. The court calls this person the “Keeper of the Records."

When you subpoena records from a business, organization, or government agency, call to find out the name and title of the person who is in charge of the records. This person may be:

• an office manager,
• an employee of the records department,
• an administrative assistant, or
• the manager of a business.

You can learn more details about how to serve a subpoena on a corporation or government agency in the Massachusetts Rules of Civil Procedure 4(d)(2), 4(d)(3) and 4(d)(4).

If you can, talk to the person before you send the subpoena to find out what records they have. Ask them where you should send the subpoena.

You have to give written notice about any non-party subpoena to every party in the case.

• If the subpoena is for a deposition, you have to give the other parties a copy of the subpoena you sent to the non-party witness at least 7 days before the deposition date.
   
• If the subpoena is for documents only, you need to give the other parties a copy of the subpoena before you serve it on the non-party witness. 

You also need to give copies of the documents you get to the other parties in the case as soon as you can after you have received the documents. If the non-party objects to the subpoena, you need to tell the other parties that too.

The person in charge of the records has to:

• Get the records you asked for together,
• Complete and sign the “Affidavit of the Keeper of the Records” that they were served with the subpoena, and
• Send the records and the signed affidavit to you by the date on the subpoena.